Two days before a union election, employee Perez made the following Facebook post about his Supervisor: "Bob is such a NASTY MOTHER FUCKER don’t know how to talk to people!!!!!! Fuck his mother and his entire fucking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!"
The employee knew his Facebook friends, including 10 coworkers, would be able to see the post. The post later came to the attention of Management, which ultimately fired Perez, following an investigation.
Perez then filed a charge with the National Labor Relations Board, claiming he had engaged in protected, concerted activities. The pro-union Obama NLRB, in a two- to-one decision, agreed. The Board ruled that the Facebook post was not so “opprobrious” as to lose the protection that the National Labor Relations Act affords union-related speech.
The Employer appealed to the U.S. Court of Appeals for the Second Circuit, which was extremely deferential to the NLRB. While the Court upheld the NLRB, it did state:
However, we note that this case seems to us to sit at the outer bounds of protected, union-related comments, and any test for evaluating “opprobrious conduct” must be sufficiently sensitive to employers’ legitimate disciplinary interests.
Editor’s Note: This writer believes that Perez’s Facebook post was clearly disloyal, disparaging, and insubordinate behavior that should be punished.